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Dwayne B.
Dwayne B., Lawyer
Category: Criminal Law
Satisfied Customers: 33394
Experience:  Numerous criminal trials ranging from traffic to murder, practicing Criminal Law for 20+ years.
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My grandchildren were taken and are now in DHS custody. They

Customer Question

My grandchildren were taken and are now in DHS custody. They say the baby was shaken. He had the triad. He is a preemie born at 28 weeks. His head was totally bruised at birth, C-Section. The DA was going to terminate but the day of trial he called and said he didn't have enough and dropped the termination.The attorney told us to sign paperwork even though we know they are innocent because judge would still make them take the classes. They have had the boys since Dec 2015. BOth boys were extremely preemie, 2 lbs 3 oz and 1 lb 9 oz. Both have chromosomes issues as well as issues from being premature. DHS worker still wants to terminate. Can we ask for a jury trial still?
JA: Because laws vary from place to place, can you tell me what state this is in?
Customer: Oklahoma
JA: Have you talked to a lawyer yet?
Customer: Yes our lawyers told us to sign papers
JA: What advice did they give you?
Customer: Yes our lawyers told us to sign papers
JA: Anything else you think the lawyer should know?
Customer: They were in the paternal grandparents custody when older baby fell on younger baby. Older baby had craniosteniosis so they front of his head is really hard. He can fall and get a huge not on his forehead and not even cry. Paternal grandmother said he fell on baby and that is when baby had seizure and stopped breathing. The ER Dr said the eliminated the possibility of a seizure. I don't know how b/c he never left our site that night. @ days later he had 7 seizures while I was holding him..
Submitted: 11 months ago.
Category: Criminal Law
Expert:  Dwayne B. replied 11 months ago.

Hello and thank you for contacting us. This is Dwayne B. and I’m an expert here and looking forward to assisting you today.

The "triad" is gradually being disproven, primarily due to cases on the East Coast and in Great Britain where Shaken Baby Syndrome SBS is looked upon with great skepticism.

The fall of an adult with them landing on the child could have caused the retinal hemorrhaging.

These cases can be defended, but you primarily defend them based on the medical records. The records are rarely clear. The doctors use the words "consistent with Shaken Baby Syndrome" a lot but most of the doctors don't really understand the dynamics of how the trauma works. In addition, they have almost no explanation as to why there are no neck injuries or rib injuries when the baby was supposedly shaken hard enough to cause "the back of their head to hit their back and their chin to hit their chest.

As to whether you can still ask for a jury trial, that depends on what has been filed in the case, what state the case is at, etc.

If you are talking about the termination case and the DA decided not to terminate and is now changing their mind again then it is likely you can still ask for a jury trial. Even if you waived one at some point the judge will normally let you withdraw the waiver if the DA has changed their mind about what they are going to "go for" in the trial.

You will want to check for the chromosomal issues to see if they contribute to bleeding at all. You will also want to check for Vitamin K deficiencies, Osteogenesis Imperfecta, as well as any other unusual condition. Guillian Barre Syndomr can also cause some of the symptoms misinterpreted as signs of SBS.

If your question has been answered then I'd offer my best wishes to you and ask that you please not forget to leave a Positive Rating so I receive credit for my work. Of course, please feel free to ask any follow up questions in this thread. I want to be sure that all of your questions are answered.

Customer: replied 11 months ago.
The boys are only two and one there's thousands and thousands and thousands of pages of medical records. They have always been seen at C********* hospital since the day they were born and like I said numerous medical issues. They were seen at C******** on an average of three days per week every week including therapist that came to the house. The dhs worker still wants to terminate. The mother of the boys has 3 chromosome issues as well & the boys each have 2 chromosome issues. The Da not seeking to terminate. Can i sue c****** hospital or dhs? The babies head was bruised at birth. They used forceps on a 2 lbs 3 ounces baby.
Expert:  Dwayne B. replied 11 months ago.

You probably can't sue DHS. As to whether you can sue the hospital you would need to sit and visit with a medical malpractice lawyer and get them to get the medical records and then have an expert review them to look for signs of medical malpractice.

I doubt you're going to be able to get a medical malpractice case though. The same problems that you would use as a defense to a SBS criminal case the doctors will use as a defense to a medical malpractice case.

If you do win your case and CPS doesn't terminate then your can consider at least filing a complaint with the state board of licensing against the doctors that are trying to say this is an SBS case. It may make them hesitate in the future before making that claim because the kids happen to have the "triad" and particularly the retinal hemorrhages.

Most of the SBS research was done on anatomically correct dolls by dropping them off of ladders, etc. which is not consistent with the mechanisms that occur with shaking a baby. In addition, the doctors can't really a judge the degree of a child's injuries at that age. One case I was involved in the doctors were making the claim that the child was deaf and almost blind but the baby would react to the sound of keys jingling near them and follow objects held in front of them, etc.

As to the forceps issue it's hard to find a medical expert who will say that it is against medical standards to use forceps on a child.